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Freedom of Speech – Constitutional Law II Outline

Constitutional Law II

Freedom of Speech

Freedom of Speech in a Bombshell 2019
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Tumola believes that, while regulating speech in general is outside of the government's jurisdiction, the First Amendment only specifically prohibits abridging political speech that is critical of the government. All other speech just falls under the government's general lack of jurisdiction to regulate it.

Unprotected Speech
Inflammatory Speech
Masses Test

The Masses test, although never adopted adopted by the Supreme Court, held that speech directly advocating criminal activity is unprotected. It does not matter how likely, serious, or imminent the crime would be.

Clear and Present Danger

The clear and present danger test is not followed anymore, but it used to be the test for whether or not speech could constitutionally be prohibited.

The clear and present danger test says that the government may punish speech that is intended to produce, or of which the natural and probable effect is to create, a danger of a likely, imminent, and serious crime.

The Court will defer to Congress what constitutes a clear and present danger.

Brandenburg Test

The Brandenburg test is the current test for what inflammatory speech Congress can prohibit. It requires advocacy directed to inciting or producing imminent lawless action and that is likely to incite or produce such action.

Discuss all three on a test.


A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence ot a particular individual or group of individuals.

The most important element is the intent to put in fear.

Intent to carry out the threatened action is not needed.

The Supreme Court has not ruled whether knowledge or recklessness would be a sufficient mens rea.

Hate Speech

Hate speech is not a separate category of unprotected speech for First Amendment purposes.

Hate speech must fall within another recognized category to lose First Amendment protection.

Group Libel

Group libel is not unprotected speech.

A group libel conviction was upheld in Beauharnias v. Illinois, but for a number of reasons, this is probably not good law anymore.

Fighting Words

Fighting words are statements likely to cause the average addressee to fight. They must be given personally, face-to-face though.

Negligence might be enough mens rea.

Fighting words are unprotected speech.

Statutes can outlaw a subset of fighting words as long as that subset of fighting words is not content-based (based on viewpoint). (It gets strict scrutiny, even if the speech is worthless.)

Being motivated by race can be a basis for enhanced sentencing, just not an element of the crime itself.


Under the Miller test, speech is obscenity and therefore unprotected if it:

  1. Appeals to the prurient interest of the average person in the community,
  2. Is patently offensive to the community as defined by statute, and
  3. Lacks serious literary, artistic, political, or scientific value.

This includes child pornography as long as it involves actual children and not just drawings of children.

  • The purpose of the protection is to protect children from the harm in the creation of the pornography, and this is not implicated if it is drawn or computer-generated.

The Supreme Court theoretically could create new categories of unprotected speech if it was shown the founders intended such speech to be unprotected, but it is very hesitant to do so. (The Chaplinsky test is descriptive, not prescriptive.)

Commercial Speech

The Central Hudson elements for regulating commercial speech require that:

  1. The speech is lawful and not misleading (False speech is evaluated separately)
  2. The government regulation advances a substantial government interest
  3. The government objective is advanced directly by the regulation
  4. The regulation is not overly broad

Government employees' speech is not protected if it is within the scope of their employments or about personal matters at work.

You can be forced to pay for speech you disagree with if it is incident to a regulatory scheme or government speech.

Speech in criminal associations, like for conspiracies, is not protected.

Semi-protected Speech

For indecent speech, the interests of children and non-consenting adults is balanced against the speakers.

Defamation is semi-protected, but it is not tested on.

Commercial speech is semi-protected if the regulation is overly broad.

If speech is restricted based on its content in a nonpublic forum, the court will apply a reasonableness test. If it is a designated limited public forum, intermediate scrutiny or a reasonableness test is applied.

If a government employee speaks as a citizen or about a matter of public concern outside the scope of his work, a balancing test is applied.

Freedom of Association

Association can sometimes be protected, depending on how much the association is about speech and how important its speech is.

Student speech can be restricted if it interrupts school or if its content promotes certain viewpoints.

Campaign Contribution

Campaign contributions count as speech and are semi-protected.

If there is a coordination of expenditures with candidates for express advocacy, it is treated a contribution.

The purpose of limiting campaign contributions is to prevent corruption.

Protected Speech

Any speech that is not unprotected speech or semi-protected speech is protected speech and thus regulations of such speech are subject to strict scrutiny.

Examples include:

The message intended to be conveyed by the speech must be apparent on its face. It cannot just be said afterwards.

Content-Neutral Regulation

If a regulation on speech is neutral as to its content, it is allowed as long as it falls within one of three categories:

  1. Regulating the time, place, and manner of speech
    • Although it must comport with the forum analysis
  2. Expressive Conduct

    The government can regulate expressive conduct for its non-communicative impact. According to O'Brien, to do this, the regulation must:

    1. Be within the government's enumerated powers
    2. Further a substantial government interest
    3. Not be a pretext for regulating conduct
    4. Be a less restrictive means

    The expressive conduct doctrine only applies to non-serious criminal conduct.

    This conflicts with the free exercise doctrine.

  3. Secondary Effects

    If the government pretends to target the secondary effects of speech, but is really discriminating based on the content of speech, it will receive intermediate scrutiny.

    This usually comes up with regulations of adult businesses.

West Virginia State Board of Education v. Barnette

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.


There are four types of forums:

Public Forum

Public forums are basically streets, parks, and sidewalks. Plus property by long tradition devoted to assembly and debate.

Public forums receive intermediate scrutiny for content-neutral regulation and strict scrutiny for content-based regulation and viewpoint-based regulation.

Designated Unlimited Public Forum

Designated unlimited public forums are defined by government fiat.

Designated unlimited public forums receive intermediate scrutiny for content-neutral regulation and strict scrutiny for content-based regulation and viewpoint-based regulation.

Designated Limited Public Forum

Designated limited public forums are nonpublic forums designated for use by the public as a place for speech but limited to certain groups or subjects. Usually they are schools after hours.

Designated limited public forums receive intermediate scrutiny for content-neutral regulation, likely intermediate scrutiny for content-based regulation, and strict scrutiny for viewpoint-based regulation.

Nonpublic Forum

All public property that is not traditionally or designedly open for speech is a nonpublic forum.

Regulation on nonpublic forums is usually tested as to the reasonableness in light of the purposes for which the property is lawfully dedicated with great deference to the regulation. However, if it is view-point based, dicta indicates that strict scrutiny would be used.

Government Speech

Governments, through their employees, must engage in speech to execute their powers, however public employees also have First Amendment speech rights.

To resolve cases involving speech of government employees, courts look at three distinctions:

  1. Speaking as public employee or citizen
  2. Speaking about matters of public or private concern
  3. Speaking about matters within or outside the scope of employment

Depending on where the speech falls, the speech will either be afforded no protection or the government, employee, and public interests will be balanced to see if it should be protected.

The government is not allowed to penalize speech it disagrees with, but it is allowed to subsidize speech that it does agree with. (Though this contravenes Justice Jackson's statement in Barnette.)

  • But it cannot fund speech just for the diversity of different private viewpoints.
  • If it subsidizes everyone but a few people though, this will likely be found to be a penalty.

The government can also therefore discriminate, even based on viewpoint, in deciding who to hire to speak.